2017 ONSC 1947, 2017 ONSC 1947

CITATION : Sliwin v. College of Physicians and Surgeons, 2017 ONSC 1947 DIVISIONAL COURT FILE NO.: 167/15 DATE: 20170327 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT THEN, SACHS and LOCOCO JJ. B E T W E E N : DR. SAMMY JOE SLIWIN Appellant – and – COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO Respondent ) ) Marie Henein and Matthew Gourlay for the Appellant Elisabeth Widner and Amy Block for the Respondent HEARD at Toronto: June 28, 2016 ) ) ) ) ) ) ) ) ) ) )) AMENDED JUDGMENT THEN J. : A. Nature of the Proceeding [ 1 ] The applicant appeals to this court pursuant to s. 70(1) of the Health Professions Procedural Code (the "Code") that is

Schedule 2 of the Regulated Health Professions Act, 1991 , S.O. 1991, c.18 (the "Act"), from the orders of the Discipline Committee (the "Committee") of the College of Physicians and Surgeons of Ontario (the "College") dated September 11, 2013 (the "Merits Decision") and April 1, 2015 (the "Penalty/Stay Decision"). The Committee found that the appellant committed professional misconduct by engaging in sexual abuse with a patient and subsequently revoked his license to practice medicine as mandated by the Code.

The Committee rejected the constitutional challenge to the mandatory revocation provisions of the Code as well as the defence of officially induced error and also refused to stay the proceedings on the basis of the conduct of the College and in particular of the Registrar. [ 2 ] The appellant seeks an order from this Court allowing the appeal and granting a stay of proceedings or in the alternative imposing a lesser penalty. [ 3 ] In my view, the appeal must be dismissed for the reasons that I will elaborate. background

(1) Relationship between Dr. Sliwin and C.H. [ 4 ] The appellant, Dr. Sliwin, is a plastic surgeon who practices at this own private facility, the Forest Hill Institute of Aesthetic Plastic Surgery (the “Clinic”), and also has an office at Scarborough Hospital.

[ 5 ] The allegations against Dr. Sliwin arise out of his relationship with C.H. who, at various times between 1992 and 2008, was in Dr. Sliwin's employ, his patient, and in an intimate relationship with him. [ 6 ] In order to appreciate the nature of the relationship between Dr. Sliwin and C.H. and in particular the timing of their sexual encounters in terms of the status of C.H. as a patient, it is necessary to outline the employment, medical and intimate relationship between them in some detail. [ 7 ] Dr.

Sliwin and C.H., accompanied by their spouses, met at a party at the invitation of mutual friends in 1988. [ 8 ] In 1992, when Dr. Sliwin was in the process of setting up his private cosmetic surgery facility, C.H. applied for and obtained a job as his receptionist. C.H. described her working relationship with Dr. Sliwin as "not very good", testifying that he was hard on her and made her feel incompetent. [ 9 ] In December 1992, Dr. Sliwin performed surgery on C.H.'s right ear (setback otoplasty) (the "1992 procedure").

Approximately two years later, a minor revision of the surgery was required and was performed by Dr. Sliwin (the "1994 follow-up"). [ 10 ] In 1995, C.H. ended her employment because of prohibitive child care costs and remained at home until 1997 when she commenced working at the office of two family practitioners. [ 11 ] In January 1997, while no longer in his employ, C.H. saw Dr. Sliwin for a consultation with respect to her suitability for a laser refinishing procedure on her lower eyelids. Dr.

Sliwin advised she was not suitable for this procedure and instead required cosmetic eyelid surgery (surgical blepharoplasty). C.H. elected not to proceed with surgery at that time (the "1997 consultation"). [ 12 ] In November 2000, C.H. applied for and obtained a position as office manager for Dr. Sliwin's practice. C.H. said the working atmosphere was much lighter and less intimidating than during her prior employment at the Clinic, testifying that Dr. Sliwin was more easy-going and would socialize or flirt with office staff. During her work as an office manager, C.H. and Dr.

Sliwin regularly commuted together between the Clinic and the Dr. Sliwin's hospital office. Their personal relationship evolved. [ 13 ] On March 8, 2001, Dr. Sliwin and C.H. had their first sexual encounter consisting of sexual intercourse. They both testified they regarded this as a "one-time thing", but their mutual attraction remained strong and the encounters continued. C.H. kept track of the sexual relations on her calendar. [ 14 ] On March 16, 2001, Dr.

Sliwin performed breast enlargement surgery (bilateral augmentation mammoplasty) on C.H. at his Clinic (the "2001 procedure"), with follow-ups until April. [ 15 ] C.H. testified that Dr. Sliwin told her that, if she proceeded with the breast augmentation, they could no longer be intimate. However, the sexual relationship between Dr. Sliwin and C.H. resumed about two weeks after the surgery (in March or April) and continued throughout 2001.

The frequency of sex was intermittent, taking place a few times per week or month or sometimes not taking place for months. [ 16 ] There is no record of sexual encounters during the first eight months of 2002. C.H. left her marriage in 2002 and was divorced sometime thereafter. [ 17 ] On March 8, 2002, Dr. Sliwin performed a cosmetic eyelid surgery (bilateral lower blepharoplasty) on C.H. at his Clinic. On June 21, 2002, Dr. Sliwin gave C.H. two different filler injections in her upper lip (the "2002 procedures"). [ 18 ] There is a record of sexual encounters in September, October and November 2002.

Throughout 2003 and 2004, sexual encounters took place three to four times per month, with some gaps. [ 19 ] On April 8. 2004, Dr. Sliwin performed a procedure relating to C.H.'s breast augmentation, releasing scar tissue (bilateral capsulotomies) and replacing the saline implants with gel implants, at the Scarborough Hospital (the "2004 follow-up"). C.H. had signed a consent form for the procedure on March 1, 2004, and a physical examination was conducted between March 31 and April 5, 2004. On April 13 and 14, 2004, Dr. Sliwin and C.H. had intercourse. [ 20 ] The sexual relationship was ongoing throughout 2005.

In May 2005, Dr. Sliwin gave C.H. Botox injections (the "2005 procedure"). [ 21 ] In late summer of 2005, C.H. believed Dr. Sliwin contemplated leaving his wife. He moved out of his home and rented an apartment, but moved back in with his wife a month later. C.H. found this upsetting and decided to leave her job. In November 2005, C.H. left Dr. Sliwin's employ and got a job working for another plastic surgeon. [ 22 ] In March 2006, C.H. resumed working for Dr. Sliwin doing typing after hours to earn extra income. The sexual relationship likewise resumed and became even more clandestine, usually occurring when Dr.

Sliwin visited the office after hours. [ 23 ] The sexual relationship was ongoing throughout 2006 and 2007, with decreasing frequency. [ 24 ] On June 29, 2007, Dr. Sliwin performed a facelift on C.H. at his Clinic (the "2007 procedure"). Dr. Sliwin and C.H. had intercourse before and after this procedure on June 21, 2007. [ 25 ] In September 2007, Dr. Sliwin and C.H. had their final sexual encounter. C.H. testified that the relationship "ended badly" and that Dr. Sliwin was abusive and cold. She continued typing for Dr.

Sliwin for several months but did not interact with him in person. [ 26 ] On August 13, 2008, Dr. Sliwin performed a procedure relating to C.H.'s breast augmentation, releasing scar tissue and replacing the right breast implant (the "2008 follow-up").

[ 27 ] C.H. was not charged for any of the procedures and Dr. Sliwin assumed the cost of paying the anesthetist and other operating room personnel. Though not her family doctor, Dr. Sliwin made medical referrals, ordered tests and x-rays, and prescribed medications for C.H. Dr.

Sliwin testified that standard patient procedure was followed with respect to C.H.'s operations -consultation, workup, operative procedure, and follow-up – with the sole exception that follow-up may have been informal as he saw her nearly every day at the office. [ 28 ] In 2008 C.H terminated the employment relationship and commenced a civil suit against Dr. Sliwin that was ultimately settled. On the advice of her counsel, C.H. also filed a complaint with the College. The complaint by C.H. resulted in allegations being brought before the Discipline Committee alleging that Dr.

Sliwin committed professional misconduct (1) under s.51(1)(b.1) of the Code, by engaging in sexual abuse of a patient, and (2) under para. 1(1) 33 of O. Reg. 856/93 made under the Medicine Act, 1991 , S.O. 1991, c.30, by engaging in conduct relevant to the practice of medicine regarded by members of the profession as disgraceful, dishonourable, and unprofessional. C. RELEVANT STATUTORY PROVISIONS Health Professions Procedural Code as

Schedule 2 of the Regulated Health Professions Act, 1991 , S.O. 1991, c.18 Sexual abuse of a patient 1 .

(3) In this Code, "sexual abuse" of a patient by a member means, (

a) sexual intercourse or other forms of physical sexual relations between the member and the patient, (

b) touching, of a sexual nature, of the patient by the member, or (

c) behaviour or remarks of a sexual nature by the member towards the patient. 1993, c. 37, s. 4. Exception

(4) For the purposes of subsection (3), "sexual nature" does not include touching, behaviour or remarks of a clinical nature appropriate to the service provided. 1993, c. 37, s. 4. Exception, spouses

(5) If the Council has made a regulation under clause 95 (1) (O.a), conduct, behaviour or remarks that would otherwise constitute sexual abuse of a patient by a member under the definition of "sexual abuse" in subsection (3) do not constitute sexual abuse if, (

a) the patient is the member's spouse; and (

b) the member is not engaged in the practice of the profession at the time the conduct, behaviour or remark occurs. 2013, c. 9, s. 1 (1) . Definition

(6) For the purposes of subsection (5), "spouse", in relation to a member, means, (

a) a person who is the member's spouse as defined in

section 1 of the Family Law Act , or (

b) a person who has lived with the member in a conjugal relationship outside of marriage continuously for a period of not less than three years. 2013, c. 9, s. 1 (1) . Statement of purpose, sexual abuse provisions 1.1 The purpose of the provisions of this Code with respect to sexual abuse of patients by members is to encourage the reporting of such abuse, to provide funding for therapy and counselling for patients who have been sexually abused by members and, ultimately, to eradicate the sexual abuse of patients by members. 1993, c. 37, s. 5.

Regulations 95.

(1) Subject to the approval of the Lieutenant Governor in Council and with prior review of the Minister, the Council may make regulations, (O.

a) providing that the spousal exception in subsection 1 (5) applies in respect of the College; ... Professional misconduct 51.

(1) A panel shall find that a member has committed

an act of professional misconduct if, (

a) the member has been found guilty of an offence that is relevant to the member's suitability to practise; (

b) the governing body of a health profession in a jurisdiction other than Ontario has found that the member committed

an act of professional misconduct that would, in the opinion of the panel, be

an act of professional misconduct as defined in the regulations; (b.0.

l) the member has failed to co-operate with the Quality Assurance Committee or any assessor appointed by that committee; (b.1) the member has sexually abused a patient; or (

c) the member has committed

an act of professional misconduct as defined in the regulations. Orders relating to sexual abuse 51.

(5) If a panel finds a member has committed

an act of professional misconduct by sexually abusing a patient, the panel shall do the following in addition to anything else the panel may do under subsection (2): 1. Reprimand the member. 2. Revoke the member's certificate of registration if the sexual abuse consisted of, or included, any of the following, i. sexual intercourse, ii. genital to genital, genital to anal, oral to genital, or oral to anal contact, iii. masturbation of the member by, or in the presence of, the patient, iv. masturbation of the patient by the member, v. encouragement of the patient by the member to masturbate in the presence of the member. Statement re impact of sexual abuse

(6) Before making an order under subsection (5), the panel shall consider any written statement that has been filed, and any oral statement that has been made to the panel, describing the impact of the sexual abuse on the patient. Applications for reinstatement- Time of application, sexual abuse cases 72.

(3) An application under subsection (1) [by a person who [sic] certificate has been revoked or suspended as a result of disciplinary proceedings to have a new certificate issued or the suspension removed], in relation to a revocation for sexual abuse of a patient, shall not be made earlier than, (

a) five years after the date on which the certificate of registration was revoked ; or (

b) six months after a decision has been made in a previous application under subsection (1). 2007, c. 10 , Sched. M, s. 52 . B. The Issues [ 29 ] This appeal raises several issues which may be posed in the form of the following questions: 1. Did the Discipline Committee err by rejecting the defence of officially induced error? 2. Did the Committee err in concluding that the actions of the College and in particular of the Registrar prior to the hearing before the Committee did not constitute an abuse of process and accordingly did not warrant a stay of proceedings? 3. Did the Committee err in finding that mandatory revocation applies on the facts of this case?

4. Can the Committee or this Court reconsider the decisions of the Court of Appeal on mandatory revocation? 5. Did the Committee err in finding that the mandatory revocation provisions do not infringe s.7 of the Charter of Rights andFreedoms? C.

The Standard of Review [30] I agree and it would appear common ground that findings of professional misconduct subject to revocation under the Code arequestions of law within the expertise of a professional disciplinary body reviewable on a reasonableness standard and that the decisionthat the mandatory revocation provisions do not contravene s.7 of the Charter are subject to review on a standard of correctness. [31] The appellant submits that the question of whether the facts as found give rise to the officially induced error defence isreviewed for correctness.

Abuse of process raises a question of mixed fact and law and accordingly the decision of the Committee is tobe reviewed on the standard of correctness with respect to the applicability of legal principles while deference is warranted with respectto its finding of fact and the exercise of its discretion to grant or refuse a stay. [32] The respondent submits that the issues raised by the appellant pertaining to the Committee’s decision to reject the defence ofofficially induced error, and its decision to refuse a stay of proceeding are fact specific and questions of mixed fact and law which attractdeference (See: Gale v.

College of Physicians and Surgeons of Ontario, 2015 CarswellOnt 4358 (Div. Ct.) at paras. 6-9). With respect tothe issue of whether the mandatory revocation regime applied in this case, the respondent submits that deference is presumed where thetribunal is interpreting the Code, its governing statute. Moreover, the standard of correctness applies only to questions of law that areboth (1) of “central importance to the legal system” and, (ii) outside the scope of the tribunal’s specialized expertise. (See: Dunsmuir v.New Brunswick, 2008 SCC 9 , 2008 S.C.C. 9 at paragraph 45, 53-55, 60, 62-64; A.T.A. v.

Alberta Information Authority Inc.2011 SCC 59 , 2011 S.C.C. 59 at paragraph 30; M.A.H.P. v.

Nor-Man Regional Health Authority Inc. 2011 S.C.C. 59 atparagraphs 37-39). [33] I agree with the respondent that the availability of the defence of officially induced error and whether the conduct of theCollege constitutes an abuse of process are questions of mixed fact and law in which the specific facts of this case are inextricably woundup with the applicable principles of law and are accordingly not questions which can properly be characterized as “of central importanceto the legal system and which fall outside the expertise of the Discipline Committee”.

In my view, the Committee’s decision to reject thedefence of officially induced error and the exercise of its discretion to refuse a stay of proceedings based on an alleged abuse of processby the College are subject to review on a reasonableness standard. Issue 1 – Did The Discipline Committee Err By Rejecting TheDefence Of Official Induced Error? [34] The Supreme Court of Canada in Lévis (City) v.

Tétreault, 2006 SCC 12 at paras. 26-27 set out the elements which theaccused must establish in order to successfully invoke the defence of officially induced error as follows: 1. an error of law or mixed law and fact was made; 2. the person who committed the act considered the legal consequences of his or her actions; 3. the advice came from an appropriate official; 4. the advice was reasonable (and advice from an appropriate official is presumed to be reasonable unless it appears on its face to beutterly unreasonable); 5. the advice was erroneous; and 6. the person reasonably relied on the advice in committing the act. [35] The Committee concluded that the defence was not available to Dr.

Sliwin for three reasons: (

i) the advice did not come froman appropriate official; (ii) the reliance was unreasonable; and (iii) Dr. Sliwin knew that his conduct was wrong; and it is to thoseconclusions to which I shall now turn. [36] In concluding that the advice was not obtained from an appropriate official the Committee stated the following: In this case, it was argued that the "appropriate official'' is the College of Physicians and Surgeons. The "advice" consisted of periodicpublications of College policies and summaries of discipline cases published in Members' Dialogue, as interpreted by Dr. Sliwin. Dr.Sliwin conceded in his testimony that he made no attempt to confirm his

interpretation with any official of the College, by contacting theCMPA or by seeking legal advice. Therefore, to the extent there was any reliance, it was on his own

interpretation, rather than on advicethat he sought and relied upon. The Committee did not accept that there was reliance by Dr. Sliwin on “advice” from the College thatjustified his conduct. [37] The appellant submits that the Committee erred in finding that the publications and guidelines of the “College” are not“advice” from an appropriate official in circumstances where the College is recognized by the medical body responsible for advice aboutprofessional conduct.

[38] The appellant relies on the opinion of Lamer C.J.C. in R. v. Jorgensen, (SCC), [1995] 4 S.C.R. 55 who wasprepared to consider the written approval of the film board as “advice” for the purposes of the defence of official induced error.However, in that case the majority of the court did not consider the defence of officially induced error and further, held that approval bya provincial censor board does not constitute a justification or excuse. [39] The appellant also relies on the decision of Goulding J. of the Newfoundland Supreme Court in R. v.

Ralph where at para. 17he states: 17 The Appellant, Shawn Ralph demonstrated that he relied on the Administrative Guidelines and that his reliance was reasonable.He had no choice but to rely on the Administrative Guidelines as it was clear that they would apply to him. The Crown states that thisdefence is not available to the Appellant because he did not actually seek out the advice. I think the Appellant's case for officiallyinduced error is even stronger because the Guidelines were imposed on him by officials responsible for the enforcement of the particularlegislation under which he was charged.

The Crown took the unusual position at trial, claiming that the Guidelines were irrelevant, a redherring, and did not apply, but that is not consistent with the wording of the Administrative Guidelines. [40] Finally, the appellant contends that given his reliance on official College guidelines and documents it was unnecessary tocontact any official of the College or to seek legal advice. [41] It is the position of the respondent that the Committee did not find that the publications, summaries and guidelines did notconstitute “advice”, but rather that the appellant did not rely on this “advice” and instead relied on his own strained

interpretation of this“advice”. In other words, the Committee appears to have found as a fact that the respondent did not rely on the actual, unambiguous“advice”, but rather his own view of what the “advice” was, without seeking clarification from an appropriate official of the College orseeking legal advice. [42] In my view, whatever

interpretation the appellant made of the guidelines and other documents provided by the College doesnot change the nature of those guidelines or documents as official “advice”. However, his misinterpretation of those guidelines ordocuments renders his reliance on those documents as advice unreasonable. His failure to seek confirmation of his

interpretation from anofficial of the College or from legal counsel may be a further indication of recklessness or unreasonable reliance, especially incircumstances where, as the College found, the guidelines pertaining to sexual relationships during treatment, the spousal exemption andthe treatment of family members are clear and unambiguous. [43] The reasoning of the Committee on this point in the end amounts to a determination that the

interpretation of the appellant ofthe College’s “advice” was unreasonable and it is to this second reason for the Committee rejecting the defence of officially inducederror to which I shall now turn. [44] On the issue of whether the appellant’s reliance on the “advice” was reasonable the Committee stated the following: The defence of Officially Induced Error also fails, in the opinion of the Committee, on the fifth criteria of reasonableness. Exhibit #25,Tab, 1 contains the CPSO policy on "Physician-Patient Dating'', which Dr.

Sliwin testified he consulted when he was seeking guidanceas to whether he could resume a sexual relationship with [C.H.] having performed her breast augmentation surgery. This policy of theCollege is not ambiguous.

The policy's very first provision, passed by the Council of the College in May, 1992, reads, ''sexualrelationships between doctors and patients during treatment are prohibited." The prohibition against sexual relationships between doctorsand patients during treatment cannot be reasonably interpreted for surgeons to mean only the dates on which surgery takes place.Treatment is a broader medical concept that includes the pre​operative and post-operative steps to assess and provide medical services to apatient before and after surgery as described above. With regard to the argument that Dr.

Sliwin was in a "spousal relationship” with [C.H.], this is not a reasonable

interpretation of thepolicy, it is not relevant in light of the case law and in any event, it is not supportable on the facts as found by the Committee. Dr.Sliwin’s view that his conduct somehow fell within the College policy about not treating self or family members, except for minor oremergencies conditions, is without merit. [C.H.] was not a family member or a "spouse" when Dr. Sliwin decided to continue having sexwith her after the bilateral augmentation mammoplasty of March 16, 2001.

Furthermore, this and the subsequent surgeries he performedon her were neither minor matters, nor emergencies. [45] The appellant accepts that the guidelines provided by the College make it clear that “sexual relationships between doctors andpatients during treatment are prohibited.” He submits, however, that the Committee’s conclusion that the sexual acts occurred duringtreatment ignores the fact that the sexual acts occurred prior and subsequent to surgical procedures and, accordingly, ignores thedistinction between “sexual abuse” (which the appellant denied committing) and a “boundary violation” (which the appellant conceded). [46] The second guideline that the appellant consulted dealt with the treatment of self and close family members.

It stated that itwas “inappropriate for physicians to diagnose or treat either themselves or family members except for minor or emergency conditions” asthis might lead to a loss of objectivity necessary to render reasonable care. The appellant testified that he believed that this guidelineapplied to his involvement with C.H. and conceded that he was accordingly liable to be sanctioned for a “boundary violation” but notliable to be sanctioned for “sexual abuse”.

He acknowledged that by 2002 the policy statement “Drugs and Prescribing – Treating Selfand Family Members” indicated that such conduct may constitute professional misconduct. He testified that he understood by 2007 thatmore than “episodic” treatment of a sexual partner could constitute “sexual abuse”. According to him, his treatments of C.H. wereepisodic. [47] The respondent submits that as the Committee found the policy on sexual relationships with patients is clear and

unambiguous. A reasonable surgeon would not consider that this prohibition applied only to the dates on which surgery took place as treatment is a broader medical concept including, in the case of the appellant’s surgical practice, pre and post-operative steps, which, according to the appellant’s evidence, could take place up to one year post-surgery. The Discipline Committee found as a fact that sex occurred within days before and after surgical procedures.

The respondent also submits that it was unreasonable for the appellant to interpret his clandestine sexual relationship which was consummated mostly in his office while C.H. was his employee and while he continued to live with his wife as akin to a spousal or family relationship. Indeed, C.H.’s description of her relationship with the appellant was the correct one; she was his mistress.

Moreover, it was unreasonable for the appellant to consider the several cosmetic surgeries conducted under full anaesthesia as minor or emergency care or as episodic. [ 48 ] In my view, based on all the evidence it was both open to and reasonable for the Committee to find that the appellant did not place reasonable reliance on the official “advice” when engaging in sexual intercourse with C.H. [ 49 ] Finally, the Committee rejected the defence of officially induced error because the appellant knew that what he was doing was wrong. The Committee stated: Dr. Sliwin knew that what he was doing was wrong.

He told [C.H.] at one point that he could not be her doctor if they had a sexual relationship. Dr. Sliwin engaged in conduct that under the Code constituted sexual abuse of a patient.

The Committee did not accept that there was erroneous advice from the College or that he reasonably relied on erroneous advice. [ 50 ] The appellant submits that the Committee failed to appreciate that the defence may not exculpate the appellant completely but may lead to a finding of guilt on a lesser offence, such as a boundary violation. [ 51 ] The respondent submits that the appellant’s unsupported assertion that the defence of officially induced error may compel a finding of guilt on a lesser offence rather than exculpating the appellant altogether has no legal basis. [ 52 ] The respondent submits that the defence of officially induced error is an exception to the general rule that ignorance of the law is no excuse, which will result in a stay of proceedings if made out.

It is only available in the clearest of cases, to ensure that the morally blameless are excused from being held professionally or criminally responsible for their actions. (See R. v. Jorgensen , supra , at paras. 2, 37 ). The respondent contends that the defence is not available to someone who has made a calculated decision to engage in conduct he knows to be wrong because he believes that the penalty for the misconduct may not be as severe.

The respondent relies on the authorities in the Ontario Superior Court that hold that the defence of officially induced error is only available where the defendant was induced by official advice to conclude that his actions were legally acceptable: (See R. v. Brown 2000 ONCJ 33 at paras. 40-41; R. v. Halloran 2010 ONSC 4321 at paras. 6-9 ; R. v.

Barcalzo 2013 ONSC 6326 at paras. 18-19 ). [ 53 ] In my view, in rejecting the defence of officially induced error the Committee could reasonably find and indeed was entitled to find that the appellant knew that what he was doing was wrong, that the advice from the College was not erroneous, and that he did not reasonably rely on erroneous advice. At a minimum, this case does not constitute the clearest of cases. I would not give effect to this ground of appeal.

Issue 2 – Did the Committee err in concluding that the actions of the College and in particular of the Registrar prior to the hearing before the Committee did not constitute an abuse of process and accordingly did not warrant a stay of proceedings? [ 54 ] It will be necessary to set out the factual background with respect to this issue first in respect of the communications between the College and the CMPA and secondly between C.H. and the College. [ 55 ] On September 1, 2011, the appellant’s counsel appointed by the Canadian Medical Protective Association (“CMPA”), served a notice of Constitutional Question challenging the constitutionality of the mandatory revocation provisions.

This prompted the College’s prosecutor, Ms. Silver, to write to Ms. Stephenson, the appellant’s counsel, and to express the view that the Charter argument was abusive, having already been decided; and that she would bring this to the CMPA’s attention. [ 56 ] Prior to the commencement of the hearing before the Discipline Committee the Registrar sent an e-mail to the CEO of the CMPA, which provides legal support for the defence of members of the College in disciplinary proceedings.

Without identifying the appellant specifically, the Registrar expressed surprise that a CMPA counsel was bringing a constitutional challenge to the mandatory revocation provisions of the Code when such a challenge had already been raised before and rejected by the Ontario Court of Appeal. The Registrar indicated that he would consider seeking costs above the tariff rate against the CMPA. The Registrar invited the CEO of the CMPA to call him back, if he thought it appropriate, to discuss the matter.

The CEO indicated by e-mail that he would discuss the matter with CMPA counsel and get back to the Registrar the following week. The CEO of the CMPA called the Registrar to inform him that counsel had already reviewed the matter and that the CMPA had decided not to fund the constitutional challenge but that the appellant could retain his own counsel and appeal the CMPA’s decision.

Counsel for the appellant was not apprised of these communications as they were occurring. [ 57 ] Following the decision of the CMPA, McCarthy Tétrault withdrew as counsel for the appellant on the basis of its contractual arrangements with the CMPA. The appellant’s litigation counsel, Ms. Stephenson, also withdrew because she could not in good conscience represent the appellant without raising the constitutional challenge.

[ 58 ] The appellant retained Sack Goldblatt Mitchell ("SGM") to seek a review of the CPMA decision and an adjournment of the hearing. The appellant was unsuccessful on the review as the CMPA did not change its position. An adjournment of the disciplinary hearing was granted. College counsel informed SGM it would be unlikely to retain SGM again if it acted against the College, and there was concern that representing Dr.

Sliwin could be seen as contrary to the duty of loyalty owed to the College as an existing client. [ 59 ] At the Disciplinary Hearing SGM subsequently informed the College that it had made a business decision not to accept a retainer to represent Dr. Sliwin in order to obtain further work from the College. SGM also agreed with the College that there was a legal concern that accepting a retainer to represent Dr. Sliwin could be contrary to the duty of loyalty the firm owed to the College as an existing client.

Subsequently, the appellant retained his present experienced counsel. [ 60 ] C.H. made two communications to the College after submitting the complaint. First, in response to an information package sent to C.H. by the College pertaining to the referral for discipline, C.H. e-mailed College Investigator Ian Held on June 25, 2009, to express concerns about the use of the term "sexual abuse" as she felt it did not characterize her relationship with Dr. Sliwin. She later called Mr. Held to follow-up. Mr. Held did not make a record of the phone conversation in the investigative file, but did recall speaking to C.H..

He testified before the Committee that, after explaining why the term was used in a complaint as set out in the Code, C.H. did not express further concerns. [ 61 ] Second, C.H. testified that she phoned the College in May 2011 and told an unknown person that she wished to withdraw her complaint. There is no record of such a call in the investigative file. The investigator on the file at the time was Garry Hickey, who had replaced Mr.

Held after his retirement in late November 2010. [ 62 ] The appellant brought a motion based on abuse of process which he contended should result in a stay of proceedings before the Discipline Committee on a number of bases. First, he argued that the Committee should disqualify itself because the Registrar’s interference with his defence led to a reasonable apprehension of bias on the part of the Committee. Second, he submitted that the Registrar’s e-mail to the CMPA caused the appellant to lose Ms. Stephenson as his counsel of choice.

Third, he contended that the interference of College counsel improperly caused SGM to refuse to represent him at the Disciplinary Hearing before the Committee. Finally, he argued that the failure of College staff to disclose the desire of C.H. to withdraw the complaint and her objection to the characterization of her relationship with the appellant as “sexual abuse” prejudiced the appellant. Findings of the Committee on the Stay Motions

i) Disqualification of Committee [ 63 ] The Committee rejected the motion that the Committee disqualify itself, which was based on the appellant’s argument that the Registrar has a central role in the College and therefore his interference with the proposed defence of the appellant would raise a reasonable apprehension of bias on the part of the Discipline Committee, which also held a central role in the College. The Committee noted that the Registrar interacts with Committee members only as part of their professional duties.

The Committee held that there is no bias or appearance of bias if, as is the case here based on the evidence, the Registrar is not a personal friend of the members of the Committee panel and if he does not discuss the matter with them. The Committee invoked the doctrine of necessity as the interactions between the Registrar and the Committee arise by necessity from the statutory provisions of the Code . It should be noted that the appellant did not seek to disturb this ruling in argument before this court.

The Registrar’s e-mail to CMPA [ 64 ] The Committee found that the communication between the Registrar and the CEO of the CMPA was reasonable and legitimate in the context of the relationship between the two institutions as it was normal to discuss issues common to both, such as costs. The Committee also found that the communication between the Registrar and the CMPA did not cause the appellant to lose his counsel of choice. Rather, the decision not to fund the constitutional challenge was the independent decision of the CMPA.

It was that independent decision that caused the law firm to withdraw because of contractual arrangements and for litigation counsel to withdraw as a matter of conscience. [ 65 ] More importantly, notwithstanding the communication between the Registrar and the CMPA, the independence of the Disciplinary Committee was not compromised as there is no evidence of any communication by either the Registrar or the CMPA with members of the Committee nor did the Registrar have any role in the adjudication of the allegations against the appellant.

Accordingly, the Committee found that the communication did not in any way compromise the fairness or appearance of fairness of the discipline proceeding as the appellant was ultimately allowed to fully advance his constitutional challenge with the assistance of experienced counsel. [ 66 ] Finally, the Committee found that even if there had been misconduct that amounted to abuse of process, this is not a case where a stay is warranted.

The misconduct did not cause unfairness in the discipline hearing; a stay was not necessary to prevent future misconduct and going forward with the discipline hearing would not offend society’s sense of justice. 3.

The Withdrawal of SGM as Counsel [ 67 ] With respect to the communication by College counsel to SGM to the effect that the College would not retain the firm again if it accepted a retainer to act against the College and the expression of concern as to SGM’s duty of loyalty to the College, given that SGM currently represented the College in two matters the Committee held that those communications were appropriate communications between counsel and that the decision to not represent the appellant was taken by SGM both on a business and on a legal basis as SGM

also had a concern with respect to their duty of loyalty to the College. The Committee was satisfied that the appellant was not in any wayprejudiced as he subsequently retained experienced counsel. 4. Failure of College to Record and DiscloseCommunications [68] Finally, the Committee held that there was no violation of the appellant’s rights to make full answer and defence by the non-disclosure by the College investigators of communications made to them by C.H. The e-mail to Mr.

Held in which she expressed herconcern with the term “sexual abuse” as a description of her relationship with the appellant was subsequently disclosed to the appellanteven though C.H.’s understanding of “sexual abuse” was irrelevant to the disciplinary proceeding. The communication to Mr. Hickey ofC.H.’s desire to withdraw her complaint was neither recorded nor disclosed.

The Committee held that there was no misconduct in eithercase as it found that the failure to record or disclose or both was neither wilful nor deliberate and in any case both communications wereirrelevant to the disciplinary proceeding as the College had an obligation to proceed notwithstanding the views of the complainant. [69] The Supreme Court of Canada in R. v. Babos, 2014 SCC 16 , 2014 S.C.C. 16 has established the test for a stay ofproceedings where the doctrine of abuse of process is engaged.

A stay is only available in the “clearest of cases”, where the conduct is sooffensive to the notions of fair play and decency that it will either render the trial proceedings unfair or be harmful to the integrity of thejustice system. At paras. 31-32 the test is outlined by Moldaver J. as follows: 31 Nonetheless, this Court has recognized that there are rare occasions -- "the clearest of cases"-​ when a stay of proceedings for anabuse of process will be warranted (R. v. O'Connor, (SCC), [1995] 4 S.C.R. 411, at para. 68).

These cases generally fallinto two categories: 1) where state conduct compromises the fairness of an accused's trial (the "main" category); and 2) where stateconduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the "residual" category) (O'Connor,at para. 73). The impugned conduct in this case does not implicate the main category.

Rather, it falls squarely within the latter category. 32 The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of threerequirements: 1) There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that "will be manifested,perpetuated or aggravated through the conduct of the trial , or by its outcome" (Regan, at para. 54); 2) There must be no alternative remedy capable of redressing the prejudice ; and 3) Where there is still uncertainty over whether a stay is warranted after steps 1) and 2), the court is required to balance the interests infavour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest thatsociety has in having a final decision on the merits" (ibid., at para. 57). [70] The Court further explains the issue in each of the stages of the test in paragraphs 34 to 35 and 44 as follows: 34 Commencing with the first stage of the test, when the main category is invoked, the question is whether the accused's right to afair trial has been prejudiced and whether that prejudice will be carried forward through the conduct of the trial; in other words, theconcern is whether there is ongoing unfairness to the accused. 35 By contrast, when the residual category is invoked, the question is whether the state has engaged in conduct that is offensive tosocietal notions of fair play and decency and whether proceeding with a trial in the face of that conduct would be harmful to the integrityof the justice system.

To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution ofoffences. At times, state conduct will be so troublesome that having a trial -- even a fair one -- will leave the impression that the justicesystem condones conduct that offends society's sense of fair play and decency. This harms the integrity of the justice system.

In thesekinds of cases, the first stage of the test is met. … 44 Undoubtedly, the balancing of societal interests that must take place and the "clearest of cases" threshold presents an accusedwho seeks a stay under the residual category with an onerous burden. Indeed, in the residual category, cases warranting a stay ofproceedings will be "exceptional" and "very rare" (Tobiass at para. 91). But this is as it should be. It is only where the "affront to fairplay and decency is disproportionate to the societal interest in the effective prosecution of criminal cases" that a stay of proceedings willbe warranted (R. v.

Conway, (SCC), [1989] 1 S.C.R. 1659, at p. 1667). [71] The appellant submits that the Committee erred by approving the Registrar's conduct, discounting the appearance ofimpropriety, and dismissing the motion for a stay. The College improperly interfered with Dr. Sliwin's right to counsel of choice and to

control his own defence and created a reasonable apprehension of bias that, together with other circumstances, amounts to an abuse of process justifying a stay of proceedings in the following manner: (

a) The Committee's appearance of independence from improper outside influence was gravely compromised: the College, through its most senior official who oversees its prosecutorial mandate, committed itself to a view that Dr. Sliwin's central defence was without merit, actively intervened before the CMPA, created an illegitimate pressure to ensure the defence would not be mounted, with the predictable result that Dr. Sliwin would be subjected to the stress and delay of obtaining new counsel, and did so while keeping Dr. Sliwin in the dark about these discussions.

The communications crossed the line and cannot be justified as a costs discussion because the CMPA does not pay the costs awarded against a member in a College hearing. Rather the communications were motivated by a desire to avoid the costs of defending the constitutional challenge at the hearing on an issue that the Registrar believed to be without merit. This is analogous to a Crown prosecutor engaging in ex parte communications with Legal Aid Ontario to express a view that a defence is improper and should not be funded. (

b) The College exacerbated the prejudice caused by the Registrar by forcing SGM to make a “business decision" between acting for Dr. Sliwin and foregoing future College retainers or cutting Dr. Sliwin loose, which is unsavory and unfair. Any duty of loyalty by SGM towards the College is balanced against the countervailing interest that a litigant should not be deprived of their choice of counsel without good cause. The College's reliance on this duty was tactical rather than principled – it is commonplace for government bodies to accept that counsel will act both for and against them in unrelated cases; (

c) The College further exacerbated the prejudice by failing to disclose significant communications with C.H.: Mr. Held did not note or disclose C.H.'s expressed opposition to the label "sexual abuse" at the commencement of the investigation in 2009, or her wish to withdraw the complaint in May 2011. This information, though not necessarily determinative or relevant to the College's choice to proceed, was a crucial piece of evidence for the defence, both for potential resolution purposes and as support for the constitutional argument. (

d) The only appropriate remedy is a stay of proceedings, as the appearance of fairness and independence in the proceedings were irreparably compromised by the College’s improper conduct, and granting a stay would not cause any serious concerns about public protection as the conduct was situational and is unlikely to be repeated. [ 72 ] The respondent submits that the actions and conduct of the College, either individually by the Registrar, by counsel or by staff or cumulatively do not constitute an abuse of process. [ 73 ] First, it was open to the Registrar to discuss the matter of costs with CMPA in the context of a routine discussion of matters of mutual interest.

In his e-mail the Registrar specifically noted that he was open to arguments that the College should not seek costs above the typical rate and indicated in his evidence that he had no illusions that he could dissuade the CMPA from doing what they considered appropriate.

Most significantly, there is no evidence that the Registrar’s e-mail to the CMPA had any effect on the CMPA’s independent decision to withdraw funding for the appellant’s constitutional challenge, or that the inquiry within the CMPA was not initiated before that communication and the decision was to withdraw funding independently made before the Registrar and the CEO of the CMPA spoke.

Further, the decision of litigation counsel to withdraw was a direct result of the CMPA’s decision, independent of the actions of the Registrar. [ 74 ] It was open to the appellant to appeal the decision of the CMPA and when the appellant exercised his right to appeal the position of the CMPA to deny funding for the constitutional challenge was upheld. [ 75 ] Finally, there is nothing connecting the Registrar’s communications with CMPA to the disciplinary proceedings and accordingly the Committee’s independence was not in any way compromised as the Registrar did not discuss any aspect of the case with any of the Committee members. [ 76 ] Secondly, the College had the right to assert a “duty of loyalty” in withholding its consent for “SGM” to act against it and it was also appropriate for the College to indicate its policy that it would reluctantly not provide work to SGM in the future if SGM took the appellant’s retainer to act against the College at the disciplinary hearing.

Moreover, SGM was entitled to make its own business decision not represent the appellant in view of the policy of the College and its own legal assessment that its duty of loyalty to the College (who was an ongoing client) would be compromised. [ 77 ] In any event, there is no evidence that either the withdrawal of McCarthy Tétrault or SGM or its respective counsel had any bearing on the appellant’s right to a fair hearing before the Disciplinary Committee as he ultimately was represented by experienced counsel who manifestly advanced a full defence including the constitutional challenge and who was granted an appropriate adjournment to prepare. [ 78 ] Thirdly, the respondent submits that the alleged failure of the College investigators to record and disclose communications with the complainant C.H. had no impact on the disciplinary proceedings.

Her objection to the characterization of her relationship with the appellant as “sexual abuse” was disclosed to counsel for the appellant. In any event her views on this issue as well as her attempt to withdraw the charge against the appellant were canvassed before the Committee, who correctly found her views irrelevant, either to the continuation of the proceeding or to the legal issues therein. [ 79 ] Finally, the College contends that even if the conduct of the College engaged the abuse of process doctrine, a stay is not appropriate in this case.

First, the appellant’s right to a fair hearing was not impaired and no unfairness was perpetrated by the hearing. Secondly, the public interest in adjudicating sexual abuse allegations far outweighs any alleged harm to the integrity of the justice system. [ 80 ] In my view, as in the decision of the Supreme Court in Babos , supra , the impugned conduct of the Registrar did not prejudice the fairness of the hearing, but it did risk undermining the integrity of the discipline process.

However, as in Babos , I am of the view that, while the conduct of the Registrar was inappropriate, it was not egregious enough to outweigh society’s interest in having a final decision on the merits with respect to a serious allegation of sexual abuse under the Code.

[81] In my view, the Committee erred in characterizing the communication by the Registrar as a benign interchange between theCollege and the CMPA concerning the potential liability of the CMPA for costs should the constitutional challenge fail as it is clear thatonly the appellant would have been liable for such costs.

Rather, the e-mail from the Registrar was a carefully veiled, albeitunsuccessful, attempt by the Registrar to have the CMPA review its funding for the constitutional challenge, which the Registrarbelieved had no merit so as to minimize the College’s costs with respect to the disciplinary proceeding. [82] While the concern of the Registrar as to its costs of defending against arguments which in his view are completely devoid ofmerit is understandable, the appellant was entitled to advance its case without interference from the Registrar, whether his defences hadmerit or not.

The analogy of the prosecution in a criminal case approaching legal aid to offer the opinion that funding should not beavailable for defences with which the prosecution disagrees is apt. [83] Nevertheless, in my opinion the conduct of the Registrar did not prejudice the fairness of the trial. There is no evidence thatthe e-mail had any influence on the independence of the decision of the CMPA to not fund the constitutional challenge and indeed theevidence of the CMPA is that the decision was completely independent.

Both the appellant and the CMPA invoked privilege over theirdiscussions about the funding of the constitutional challenge. Moreover, the appellant exercised his right to appeal the decision of theCMPA and the decision was upheld. In my view, it was open on the evidence and reasonable for the Committee to find that the decisionof the CMPA was an independent decision, free of any taint from the communications of the Registrar. [84] I am also of the opinion that the fairness of the trial was not prejudiced by any loss by the appellant of counsel of choiceresulting from the actions of the Registrar.

Once it is accepted that the decision not to fund the constitutional challenge was takenindependently by the CMPA, it follows that the decision of McCarthy Tétrault to withdraw because of its contractual arrangements withthe CMPA and that of litigation counsel associated with the firm to withdraw because she could not proceed in good conscience withoutadvancing the constitutional challenge is attributable solely to the decision of the CMPA and not to the Registrar’s actions. [85] With respect to the refusal of “SGM” to accept the appellant’s retainer to represent him at the disciplinary hearing, I agreewith the submission of the respondent that it was not inappropriate and indeed it was fair to “SGM” for counsel for the College to apprise“SGM” of the policy of the College to not retain counsel who act against it and to express its concerns with respect to the “duty ofloyalty” of “SGM” to the College as an ongoing client.

In these circumstances I see nothing nefarious in the Committee’s acceptance atface value that “SGM” made a valid business decision not to represent the appellant at the disciplinary hearing to assure future businesswith the College and relied on its own understanding of its legal obligation with respect to the duty of its loyalty to its client, havingregard to its own assessment of the decision of the Supreme Court of Canada in R. v.

Neil, 2002 SCC 70 , [2002] 3 S.C.R. 631. [86] The appellant’s submission that the Registrar’s e-mail to the CMPA compromised the fairness or appearance of fairness of thehearing before the Disciplinary Committee must also be rejected. There is no evidence that the Registrar attempted to influence anymembers of the Disciplinary Committee. [87] The appellant relies on the decision of the Supreme Court in Canada (Minister of Citizenship and Immigration v. Tobiass, (SCC), [1997] 3 S.C.R. 391 and of MacBain v. Lederman (1985), 22 D.L.R. (4th)).

In Tobiass, supra, the Crownsought to revoke the Canadian citizenship of two suspected war criminals. As a result of the significant delay in completing argumentbefore the Associate Chief Justice, the assistant Deputy Attorney General approached the Chief Justice of the Federal Court to expresshis displeasure at the delay and to advise that the Department of Justice was considering a reference to the Supreme Court to determinesome of the preliminary issues due to the delay.

As a result the Chief Justice approached the Associate Chief Justice and both agreedthat to avoid the reference the court was committed to completing the arguments within the dates already set. These matters werereduced to letters that were subsequently disclosed to counsel, although counsel were initially not copied nor were counsel invited toparticipate in the discussions between the Chief Justice and the Deputy Attorney General. There is no suggestion that the merits of thecase were discussed.

The Supreme Court held that the Chief Justice’s interaction with the adjudicator was inappropriate and damaging tothe appearance of judicial independence. At paragraph 69 the court stated the following: Though it is very important that the judiciary should actually remain independent, it is equally important that the judiciary should beseen to be independent. In our view, there is no sufficient evidence to support the conclusion that the Chief Justice and the AssociateChief Justice did not in fact remain independent.

However, the evidence does compel us to conclude that the appearance of judicialindependence suffered significantly as a result of what happened on March 1, 1996. [88] In my view, however, Tobiass, supra, is distinguishable. In this case there is no evidence that the Registrar attempted toinfluence the members of the Committee or the decision maker, whereas in Tobiass, because of the approach of the Chief Justice to thedecision maker, the appearance of trial fairness was compromised. In this case there was an inappropriate, misguided and ultimatelyunsuccessful attempt to influence the CMPA.

However, the Committee was entitled to find that the CMPA decision was independent andthat ultimately no unfairness was perpetuated as the appellant was able to fully advance his constitutional challenge before theDisciplinary Committee. In my view, in the circumstances of this case, not only is there no evidence of trial unfairness, there is also noevidence of an appearance of trial unfairness. [89] In an administrative law context the appellant relies on the decision of the Federal Court of Appeal in MacBain v.

Lederman.In that case the Commission that investigated the complaint and decided it had merit also appointed the tribunal designated to hear thecase in which the Commission also acted as prosecutor. In these circumstances, the court found that a reasonable apprehension of bias onthe part of the Tribunal existed where at page 10 the court states the following: In my view, the apprehension of bias also exists in this case because there is a direct connection between the prosecutor of the complaint(the Commission) and the decision-maker (the Tribunal).

That connection easily gives rise, in my view, to a suspicion of influence ordependency. After considering a case and deciding that the complaint has been substantiated, the “prosecutor” picks the Tribunal whichwill hear the case. It is my opinion that even if the statute only required the Commission to decide whether there was sufficient evidenceto warrant the appointment of a Tribunal, reasonable apprehension of bias would still exist.

[90] MacBain is also distinguishable as in the instant case the Committee was entitled to find, based on the evidence of theRegistrar as well as on all the evidence, that there was no evidence of any attempt on the part of the Registrar to influence the Committeeand no evidence that any appearance of unfairness could be inferred from the nature of the association of the Registrar and theCommittee. [91] With respect to the failure to record or disclose the views of the complainant regarding whether her relationship with theappellant constituted “sexual abuse” and her wish to withdraw the complaint, I agree with the respondent that her views as to sexualabuse were subsequently disclosed and that her views on both issues were not only not relevant to whether a hearing would be held or tothe principle issues at the hearing, but were in any event fully canvassed in evidence so that any failure to disclose is of little moment inassessing whether an abuse of process occurred that would warrant a stay of proceedings. (See: Volochay v.

College of MassageTherapists, 2012 ONCA 541 , [2012] O.J. No. 3871 (C.A.) at paragraphs 10, 46; Leering, supra, at 45-46). [92] In my view, the appellant has failed to discharge the burden to demonstrate that a stay of proceedings is required, as theCommittee was correct in finding that neither the fairness of the hearing nor the appearance of a fair hearing had been compromised, andthat no unfairness had been perpetuated by the conduct of the hearing.

Further, in my view, the conduct of the Registrar inunsuccessfully attempting to influence the decision of the CMPA to not fund the constitutional challenge does not rise to the level of anabuse of process so as to compromise the integrity of the judicial process requiring a stay of proceeding. Even if I am wrong that noabuse of process has occurred, I am of the opinion that, on balance, the public interest in an adjudication on the merits of the seriousallegation of sexual abuse outweighs any potential harm to the integrity of the judicial system warranting a stay of proceedings.

I amfortified in my conclusion as the Supreme Court of Canada has consistently held that a stay of proceedings is not available incircumstances more egregious than those present in this case. [93] In R. v. Babos, supra, at paragraph 72, a stay was not granted even though the misconduct at issue included: (

i) the Crown’sattempt to intimidate the accused by threatening the accused with additional charges; (ii) in the face of evidence of collusion by twopolice officers to mislead the court about the seizure of a firearm; and (iii) the use of improper means by the Crown to obtain the medicalrecords of the accused. The court concluded the conduct was reprehensible but that it did not require a stay. See also: R. v. O’Connor, (SCC), [1995] S.C.J. No. 98 at paragraph 90, where the court refused a stay where the Crown failed to make fulldisclosure despite being ordered to do so by the trial judge. R. v.

Scott, (SCC), [1996] S.C.J. No. 13 where the courtrefused a stay where the Crown stayed the proceedings and shortly thereafter commenced fresh proceedings in order to avoid anunfavourable evidentiary ruling. R. v. Regan (2002), S.C.C. No. 12 where the court refused a stay where the Crown instructed the policeto delay laying charges to avoid bringing the matter before a judge who might be sympathetic to the accused. [94] In my view the Committee was correct or at a minimum reasonable in refusing to grant a stay of proceedings in thecircumstances of this case. I would not give effect to this ground of appeal.

Issue 3: Did the Committee err in finding that mandatoryrevocation applies on the facts of this case? [95] In its initial decision on September 11, 2013, the Committee addressed the merits of whether the appellant engaged in conductrelevant to the practice of medicine that having regard to the circumstances would reasonably be regarded by members as disgraceful,dishonourable and unprofessional amounting to sexual abuse which under s. 1(3)(

a) of the Code consists of sexual intercourse or otherforms of physical sexual relations between the member and the patient. [96] The Committee noted that to fall within the meaning of “sexual abuse”, the sexual relationship must be concurrent with thedoctor-patient relationship.

If the relationship was not with a patient or not concurrent, the allegations of sexual abuse must be dismissed. [97] After extensively reviewing the employment, medical, and personal history between the appellant and C.H. to which referencehas been made previously, the Committee found that C.H. was a patient of the appellant and that the sexual relationship between themwas concurrent with the doctor-patient relationship. There was ample evidence to support those findings. [98] The Committee found that there was a doctor-patient relationship.

The Committee rejected the appellant’s arguments thatthere was no sexual abuse because of the fact that C.H. was a sophisticated consumer of cosmetic surgery who was not a vulnerablepatient in a doctor-patient relationship with a power imbalance or that there was no sexual abuse because C.H. did not consider herself tohave been sexually abused and had communicated to the College that her sexual relationship with the appellant was consensual. TheCommittee relied on the decision of the Court of Appeal in Leering v.

College of Chiropractors (Ontario) 2010 ONCA 87 for theproposition that “sexual abuse” does not require that there be a power imbalance between doctor and patient or that the sexualrelationship be non-consensual, where at paragraph 45 the Court stated: The Divisional Court correctly identified the purpose of these provisions of the Code, which is to prevent a health care professional frombeing in a position to use the power imbalance between a doctor and patient to obtain consent to sexual activity.

However, the offence iscomplete when a doctor is in a sexual relationship with a patient, regardless of whether there was any power imbalance in the particularcase, and whether it was used in fact to obtain consent to sex. [99] The Committee also found that there was a substantial evidentiary basis to conclude that the appellant was C.H.’s doctorduring the period from March 14, 2001 through to 2008.

The Committee found that the doctor-patient relationship includes the timeperiod for assessment and treatment before and after the surgery and that the appellant and C.H. engaged in sexual relations during thepost-operative treatment period after the 2001 procedure and both during the pre and post-operative period for the 2004 follow-up as well

as the 2007 procedure. [100] On the basis of the evidence and the arguments presented to that point in the proceeding, the Committee found that theappellant engaged in sexual abuse of a patient by his sexual relationship with her during the currency of their doctor-patient relationship.In my view based on the authority of Leering, supra, it was open to and reasonable for the Committee to so find as a matter of law, andadditionally, it was open to and reasonable for the Committee to make the findings of fact to which this court must defer on the issue ofwhether C.H. was a patient and whether the sexual relationship was concurrent with the doctor-patient relationship, notwithstanding thata solitary act of sexual intercourse occurred before the doctor-patient relationship was established.

However, that is not the end of thematter, as on June 13 in the penalty phase of the proceeding the appellant brought a constitutional motion to the effect that the mandatorypenalty provisions are contrary to the Charter of Rights and to the extent that they are unconstitutional do not apply to the appellant. It isto this issue that I now turn. 4.

Can the Committee or this Court reconsider thedecisions of the Court of Appeal as to mandatory revocation? [101] The principle submission of the appellant before the Committee was that the mandatory revocation regime was never meant toapply to pre-existing sexual relationships between doctor and patient as the concern about the exploitation of the power dynamicbetween doctors and their patients does not arise where the sexual relationship pre-dated the doctor-patient relationship.

Where such arelationship exists, the subsequent act of performing cosmetic surgery on a sexual partner does not vitiate their long standing consent ortransform the physician into a sexual abuser. Such an

interpretation is contrary to the ordinary meaning of “sexual abuse” and the policyobjective of guarding against abuse of power. Accordingly, it was contended that the three leading cases of the Court of Appeal, Mussaniv. College of Physicians of Ontario (2004), (ON CA), 74 O.R. (3d) 1; Rosenberg v. College of Physicians of Ontario (2006), (ON CA), 275 D.L.R. (4th) 275; and Leering v. College of Chiropractors of Ontario (2010), 2010 ONCA 87, 98 O.R. (3d) 561 were wrongly decided and should be reconsidered on the basis of the pronouncements of the Supreme Courtof Canada in Canada v.

Bedford, 2013 SCC 72 , 2013 S.C.C. 72 allowing for departure from stare decisis in appropriatecircumstances. According to the appellant, both Mussani, supra, and Leering, supra, have been undermined by more recent legal andsocial developments.

It is contended that the decision in Leering caused a backlash that led to the legislative enactment of the spousalexemption and that the development of jurisprudential principles of fundamental justice i.e. arbitrariness, overbreadth and grossdisproportionality have cast doubt on the treatment of those principles in Mussani, supra. [102] The respondent submits that the appellant seeks to redefine “sexual abuse” in the regulatory context based on notions of consentwhen that is directly contrary to the legislative scheme that specifically defines the term.

That definition has been consistently respectedand recognized by the Court of Appeal in Mussani, Rosenberg and Leering as requiring only a concurrent sexual and doctor-patientrelationship without regard for the intricacies of the sexual and emotional relationship between the complainant and the professional. Therespondent contends that it was not necessary for the Committee to reconsider the leading cases of the Court of Appeal as the test inBedford, supra, has not been met.

The respondent submits that the spousal exemption for married or common law spouses is not alegislative reaction to a backlash to the decision in Leering, but simply an opt-in provision available to various health care regulators,which the College has chosen not to adopt.

In any event, an exemption for pre-existing relationships such as the appellant’s has not beenspecifically enacted by the Legislature in circumstances where the Legislature could have chosen to do so and the appellant, who hasconducted a clandestine sexual relationship while remaining married, manifestly does not in any event qualify under the exemptionwhich has been enacted. [103] The Committee rejected the appellant’s argument that the mandatory revocation provisions of the Code, sections 1(3), 51(5)(2)and 72(3)(a), are intended to apply to pre-existing sexual relationships that pre-date the doctor-physician relationship because those pre-existing sexual relationships do not invoke the concern over the power imbalance which motivates the provisions.

The Committee foundthat it was bound by the decisions of the Court of Appeal in Mussani, Rosenberg and Leering which hold that the mandatory revocationprovisions are constitutionally valid and apply in all cases where the sexual acts took place concurrently within the doctor-patientrelationship and most significantly, there is no exception for pre-existing sexual relationships that pre-date the doctor-patientrelationship.

In support of its findings respecting constitutional validity the Committee cited the following statements from Mussani, firstat paragraph 41: The weight of authority is that there is no constitutional right to practise a profession unfettered by the applicable rules and standardswhich regulate that profession. [104] and at paragraph 43: I am satisfied, therefore, that there is no constitutionally protected right to practice a profession, and that the mandatory revocation of ahealth professional’s certificate of registration in substance infringes an economic interest of the sort that is not protected by the Charter. [105] With respect to the

interpretation of the mandatory revocation provisions the Committee relied on paragraph 25 of Rosenberg: The legislation, like the Task Force recommendations, is clear and unambiguous: when it comes to sexual relations between a doctor anda patient, there is a black letter, bright line prohibitions with a drastic sanction and no exceptions or exemptions. The zero tolerancepolicy precludes inquiry into any explanation or excuse for the sexual activity. A patient’s consent is irrelevant.

and also the statement in Leering at paragraph 37 : The disciplinary offence of sexual abuse is defined in the Code for the purpose of these proceedings as the concurrence of a sexual relationship and a health care professional-patient relationship.

There is no further inquiry once these two factual determinations have been made. [ 106 ] The Committee found that even if it had the authority to depart from the leading cases on mandatory revocation on the basis of Bedford , the criteria to do so had not been met by the appellant. [ 107 ] Finally, the Committee found that the relationship between the appellant and C.H. is not analogous to the exemption provided for spouses.

Even if the College had chosen to adopt that exemption, “spouse” is defined in terms of both married and unmarried cohabitants or common law partners which manifestly does not apply to the sexual relationship between C.H. and the appellant. The appellant who, while married to someone else, never cohabited with C.H.

He did, however, engage in a sexual relationship with her throughout a long standing doctor-patient relationship. [ 108 ] In my view, it is evident that the question of whether the Committee and indeed this Court is bound by the decisions of the Court of Appeal is of pivotal importance in determining first whether the mandatory revocation penalty applies to the appellant’s circumstances and secondly, whether the mandatory revocation regime passes constitutional muster.

I agree with the position of the respondent that both the Committee and this court are bound by the decisions of the Court of Appeal in Mussani , Rosenberg and Leering. [ 109 ] In Canada (Attorney General) v. Bedford the Supreme Court spoke directly to the circumstances in which a lower court or tribunal may reconsider the decision of a higher court at paragraphs 42-44: 42 In my view, a trial judge can consider and decide arguments based on Charter provisions that were not raised in the earlier case; this constitutes a new legal issue.

Similarly, the matter may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate. 43 The intervener, the David Asper Centre for Constitutional Rights, argues that the common law principle of stare decisis is subordinate to the Constitution and cannot require a court to uphold a law which is unconstitutional.

It submits that lower courts should not be limited to acting as "mere scribe[s]", creating a record and findings without conducting a legal analysis (I.F., at para. 25). 44 I agree. As the David Asper Centre also noted, however, a lower court is not entitled to ignore binding precedent, and the threshold for revisiting a matter is not an easy one to reach. In my view, as discussed above, this threshold is met when a new legal issue is raised, or if there is a significant change in the circumstances or evidence.

This balances the need for finality and stability with the recognition that when an appropriate case arises for revisiting precedent, a lower court must be able to perform its full role. [ 110 ] It is clear that the court sought to establish a high threshold for reconsideration of decisions of higher court by tribunals and lower courts. A lower court is not entitled to ignore binding precedent unless a new legal issue is raised (which was not subject to binding precedent) or there is a significant change in the circumstances or evidence.

I agree with the respondent that neither of these conditions apply in this case. [ 111 ] In my view, the appellant has raised no new legal issue as the decisions of the Court of Appeal in Mussani , Rosenberg and Leering precisely address the arguments raised by the appellant as to the constitutionality of the mandatory revocation regime as well as his challenge on the basis of “pre-existing sexual relationship” as is evident from the passages cited by the Committee outlined above. [ 112 ] The appellant argues that the legislative amendments to the Regulated Health Professions Act whereby a spousal exemption to what would otherwise constitute sexual abuse was enacted which health care regulators could in turn opt to enact as part of their penalty regime but which the College chose not to do is a new legal issue.

The appellant characterizes this amendment as a response to a strong public reaction to Leering, supra, and as a “legislative fix” to shield pre-existing relationships from mandatory revocation. However, it is difficult to see how the provisions of the amendment by their terms accomplish the task claimed by the appellant. The spousal exemption states: Exception, spouses

(5) If the Council has made a regulation under clause 95 (1) (0.a), conduct, behaviour or remarks that would otherwise constitute sexual abuse of a patient by a member under the definition of "sexual abuse" in subsection (3) do not constitute sexual abuse if, (

a) the patient is the member's spouse; and (

b) the member is not engaged in the practice of the profession at the time the conduct, behaviour or remark occurs. 2013, c. 9, s. 1 (1) . Definition

(6) For the purposes of subsection (5),

"spouse", in relation to a member, means, (

a) a person who is the member's spouse as defined in

section 1 of the Family Law Act , or (

b) a person who has lived with the member in a conjugal relationship outside of marriage continuously for a period of not less than three years. 2013, c. 9, s. 1 (1) . [ 113 ] The Legislature, in my view, chose to provide a very narrow exemption for spouses, both married and living at common law, and did not choose to provide an exemption for all pre-existing relationships, sexual or otherwise. In this case it is clear that the exemption does not apply for two reasons.

First, the sexual relationship between the appellant and C.H. was conducted in a clandestine fashion while the appellant was married and the parties never lived together. Thus, C.H. was not the appellant’s “spouse” as that term is defined in the exemption. Second, the conduct at issue did take place while the appellant was engaged in the practice of his profession.

By requiring that the conduct not take place during the practice of the profession, the Legislature codified that the sexual conduct not be concurrent to the doctor-patient relationship, which is precisely the gravamen of the decision in Leering , supra. Therefore , I would not give effect to this ground of appeal. Issue 5: Did the Committee err in finding that the mandatory provisions do not infringe s.7 of the Charter of Rights and Freedoms ? [ 114 ]

Section 7 of the Charter provides that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. In dealing with s.7 of the Charter the Committee made this brief observation: With respect to

section 7 of the Charter , it was argued that the mandatory revocation provisions were overbroad, grossly disproportionate to legitimate regulatory interests, and arbitrary. The Court of Appeal dismissed this argument and the Discipline Committee considers itself bound by that decision. [ 115 ] In Mussani the Court of Appeal found that there was no constitutionally protected right to practise a profession.

Before us, the appellant submits that the Court of Appeal in Mussani did not address whether s.7 of the Charter imposes some limitations on the scope of a professional regulator’s disciplinary authority, thus leaving room for the development of s.7 in the professional disciplinary context. The appellant submits that his liberty and security interests are engaged by the mandatory revocation regime.

The liberty interest is engaged because the regime trenches upon his liberty right to make fundamental life choices free from unreasonable state interference by forbidding him from having a consensual, non-exploitive sexual relationship and by depriving him of his chosen livelihood based on his involvement in such a relationship. The security interest is engaged because the regime imposes serious psychological stress by requiring revocation based on an unwarranted inquiry into a consensual adult relationship.

The regime constitutes an intrusion into a person’s choice of a sexual partner. [ 116 ] The appellant argues that the mandatory provisions are not in accordance with the principles of fundamental justice as they are overbroad. They do more than is needed to achieve their intended purpose to protect the public from health professionals who exploit patients for sex. The provisions are also disproportionate as the stigma of being branded a “sexual abuser” and the draconian penalty of revocation is disproportionate to the legitimate regulatory interest. Finally, the appellant contends that the

[…]